Supreme Court Justice Samuel Alito on Thursday said the coronavirus pandemic has “resulted in previously unimaginable restrictions on individual liberty.
“Religious liberty is in danger of becoming a second-class right,” he said, expressing concern about free speech and the Second Amendment as well.
Alito’s comments came during his virtual keynote speech to a conference of the conservative Federalist Society, in which the 70-year-old justice warned that the U.S. can’t allow the restrictions on personal liberty to continue after the pandemic has ended, noting that houses of worship have been treated particularly unfairly.
“Nevada was unable to provide any justification for treating casinos more favorably than houses of worship,” he said, referring to a recent Supreme Court case in which the court rejected a request by a church to block state restrictions that subjected houses of worship to a 50-person limit, while allowing casinos to operate at 50 percent of their fire-code capacities.
Alito, who was confirmed by the Senate in 2006, said that while there was “hostility” toward “unfashionable views” before the pandemic, free speech is now particularly endangered on campuses and at some corporations.
“You can’t say that marriage is a union between one man and one woman,” Alito said. “Until very recently that’s what the vast majority of Americans thought. Now it’s considered bigotry.”
“Tolerance for opposing views is now in short supply,” Alito said, particularly in law schools and the “broader academic community”
He said a number of recent law school graduates have claimed they face “harassment” and “retaliation” for any views that go against “law school orthodoxy.”
“In certain quarters religious liberty has fast become a disfavored right,” he said. “For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry and it can’t be tolerated even when there’s no evidence that anybody has been harmed.”
Justice Alito also sounded an alarm about restrictions imposed because of the coronavirus pandemic, saying they shouldn’t become a “recurring feature after the pandemic has passed.”
“The pandemic has resulted in previously unimaginable restrictions on individual liberty,” Alito said in an address to the conservative Federalist Society, which is holding its annual convention virtually because of the pandemic.
Alito noted that he was “not diminishing the severity of the virus’ threat to public health” or saying anything about “whether any of these restrictions represent good public policy.” He cautioned against his words being “twisted or misunderstood.”
But he said it is an “indisputable statement of fact” that “we have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”
“Whatever one may think about the COVID restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed,” said Alito, who was nominated to the court by President George W. Bush.
Alito was particularly critical of two cases earlier this year where the court sided with states that, citing the coronavirus pandemic, imposed restrictions on the size of religious gatherings. In both cases, the court divided 5-4 in allowing those restrictions to continue with Chief Justice John Roberts siding with the court’s liberals.
In May, the high court rejected an emergency appeal by a California church challenging attendance limits at worship services. The justices turned away a similar challenge by a Nevada church in July. Alito said in both cases the restrictions had “blatantly discriminated against houses of worship” and he warned that “religious liberty is in danger of becoming a second-class right.”
“The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs,” he said, adding that Christians deserve the same protections as any other religious minority groups.
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“He shall judge the world in righteousness, and He shall administer judgment for the peoples in uprightness. The LORD also will be a refuge for the oppressed, a refuge in times of trouble” (Psalm 9:8—9).